THE WHAT AND WHY BEHIND NOTARIAL COHABITATION AGREEMENTS

Cohabitation is the act of living together as partners without entering into a formal marriage. The concept and practice of cohabitation has become increasingly prevalent in modern society. Cohabitation is however not recognised as a legal relationship in South African law. In reality, partners that live together do not have the same legal rights as married couples. One legal instrument that provides clarity and protection for such partnerships is what we call a Notarial Cohabitation Agreement. This article aims to delve into the intricacies of these agreements, shedding light on their significance and implications for life partners in South Africa.

Purpose

A Notarial Cohabitation Agreement is essential for partners in South Africa who wish to formalise their relationship while living together without getting married.

Partners often make use of Notarial Cohabitation Agreements when applying for a spousal or life partner visa (Section 11(6) or 11(1)(b)(iv) of the Immigration Act, No. 13 of 2002, which allows foreign national partners to live and work with a citizen or permanent resident if they are able to prove a legally valid marriage or a cohabitating relationship of at least 2 (two) years) and permanent residence ("PR”) permits (which allows foreign nationals to live, work, study and/or invest in South Africa indefinitely without the need to renew their visa).

Whether for visa purposes and/or personal security, it is common for partners in cohabitation relationships to enter into a contractual cohabitation agreement, similar to an antenuptial contract (which would typically be signed before marriage to determine how spouses assets, debts and future wealth is treated). Notarial Cohabitation Agreements regulate partners’ respective rights and responsibilities during the subsistence of their relationship as well as the consequences following the termination thereof.

Key Elements

1. Financial: Typically a Notarial Cohabitation Agreement will specify how partners will share and manage living expenses and other financial responsibilities during the relationship;

2. Maintenance: Provides for financial support between partners, if any, during the relationship and/or following termination of the relationship;

3. Property: Sets out how property owned before and/or acquired during the relationship will be owned, used and divided if the relationship ends;

4. Dispute Resolution: Establishes the process to be used to resolve conflicts that may arise during and after the relationship ends;

5. Termination: Must contain a termination clause specifying how the agreement may be terminated, which is usually by either party delivering a notice to the other party; and

6. Children: Where relevant, the agreement will include arrangements concerning the care, contact and financial support of children (or even pets).

A Notarial Cohabitation Agreement is unique to the facts of each matter and the content depends on the needs and intentions of the parties. They may include any terms, provided these terms are not illegal or contrary to public policy.

Note: There is no law that allows for a person's pension assets to be transferred in a cohabitation partnership. A Notarial Cohabitation Agreement will have no effect in this regard, as it would not be enforceable against the pension fund. 

What happens when partners don't draw up a Notarial Cohabitation Agreement?

Most people hold the incorrect assumption that living together creates the same and/or similar rights in law as marriage. This is not the case.

If cohabitants do not get married and fail and/or refuse to draw up a Notarial Cohabitation Agreement, they will effectively have zero legal protection, unless they are able to prove that they are in a universal partnership (which is a legal construct that allows unmarried couples who live together to share assets and liabilities, essentially creating a joint estate which is similar to that of marriage).

A Notarial Cohabitation Agreement reduces uncertainty by recording each individuals views, protecting both partners and confining disputes in the event the relationship ends. 

Universal Partnership

Alternatively, unmarried partners may enter into what is referred to as a universal partnership. A universal partnership provides legal protection to couples who would otherwise have no legal remedy and gives partners an alternative to marriage. It is however notoriously challenging to prove the existence of a universal partnership, as the arrangement tends to have firm requirements that are required to be met in order to be valid.

A universal partnership does not need to be a written agreement/contract and can be concluded via a tacit agreement based on the conduct of the individuals.

The key requirements include, inter alia, that:

1. the aim of the universal partnership must be to make a profit or for material gain;

2. both parties must contribute money, labour or skill to the enterprise; and

3. the universal partnership must aim and operate for the benefit of both parties.

Legal Process

Should you wish to establish a Notarial Cohabitation Agreement, both parties must consent to enter into the contract. We strongly suggest that you consult with an attorney who will record all the relevant information and draft the agreement specific to your facts and circumstances. Thereafter, the parties will sign the agreement before a Notary Public, who is a specialised attorney admitted to the High Court of South Africa and authorised to authenticate, witness and execute legal documents for national and international use. The Notary Public will notarise your Notarial Cohabitation Agreement and assign a protocol number.

Unlike an antenuptial contract when couples get married, a Notarial Cohabitation Agreement is not registered with the Deeds Office, but is simply retained by the parties, much like a Will, for safekeeping. As there are two original duplicates of the agreement, the second original will be kept in the protocol (register) of the Notary.

If one partner refuses to follow and/or abide by the agreement, the other partner may approach a Court for assistance. In most cases, if the Notarial Cohabitation Agreement is validly executed and contains the necessary provisions, a Court will typically enforce the agreement.

Case Law

Butters v Mncora [2012] ZASCA 29 is a landmark judgment with regard to cohabitation disagreements. The matter involved a couple that lived together and who had been in a long-term relationship for short of 20 (twenty) years. Notwithstanding their long-standing relationship, they did not formalise the financial position of their partnership.

When their relationship came to an end, the woman sought a portion of the man’s, her then partners, business profits and argued that her contribution to their lengthy relationship and life together, had directly supported the growth of his company. The Court found in her favour, recognising that an express or tacit partnership agreement was in existence.

Bwanya v Master of the High Court [2021] ZACC 51 is another landmark Constitutional Court judgment which held that surviving partners in permanent, reciprocal life partnerships can inherit and claim maintenance from a deceased partner's estate, even without a formal marriage or notarial cohabitation agreement.

The Constitutional Court found that “the moment a universal partnership is proven to be in existence between the parties, it becomes a legally binding and valid arrangement, as it is the case with a traditional marriage.” The Court declared the exclusion to be unfair discrimination on the ground of marital status, violating the constitutional rights to equality and dignity.

What does this case mean for you? In the event that you are in a permanent life partnership and your partner passes away without a (valid) Will, you may indeed have a right to inherit from the deceased estate and claim maintenance. However, you may only do so if you are able to provide sufficient evidence that you agreed to and conducted yourself in a manner in which there was a reciprocal duty of support. A Notarial Cohabitation Agreement which contains a provision on a reciprocal duty of support is clear evidence thereof. Without such a clause, you would be required to prove same via other means, arguably a more arduous hurdle to jump.

Should I Enter into a Cohabitation Agreement?

Unmarried partners should consider a Notarial Cohabitation Agreement when they move in together, particularly when movable or immovable property, income differences, minor children and/or debt are involved.

Parties may also enter into a Notarial Cohabitation Agreement if they live together permanently but are not in a romantic relationship, provided that both parties consent to entering into such an agreement.

In order to steer clear of avoidable risks, delays, acrimony and extensive legal costs involved in proving the existence of a universal partnership, we advise that partners draft and sign a comprehensive Notarial Cohabitation Agreement and/or ensure a joint Will or reciprocal Wills are in place.

If you need assistance drafting a tailored Notarial Cohabitation Agreement or have questions about your rights as a partner living with your partner but not intending on marrying, contact our offices. Our experienced family law department is here to assist and guide you should you require a secure and fair Notarial Cohabitation Agreement. 

By Storm Roux

(Senior Associate)

12 March 2026

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